The Cowans were deeded a portion of a larger tract of land in Ketchikan including a thirty foot “right of way” for access to it. Other portions of the tract were later deeded out which did not mention the right of way or attempt to convey the portion of the tract upon which it was located. All of the tract except the Cowans’ portion was later subjected to two plat which dedicated the right of way to the Borough which approved the plats. The Cowans did not sign the plats.
In 2006 the Cowans filed suit against the Yeisleys, other owners of property in the tract, and the Borough seeking ownership of the thirty foot strip either as part of the original conveyance to them or by adverse possession. The trial court ruled that the original deed did not convey a fee interest in the property and that they did not meet the requirements of the 2003 legislative amendments to the adverse possession statute, AS 09.45.052, requiring color of title or a “good faith but mistaken belief” that the disputed land was within the boundaries of their property.
The Cowans appealed arguing that the original deed must have intended them to be the owners of the right of way since the grantor never deeded the disputed portion to anyone else and it would be illogical that he intended to keep it for himself after deeding away the rest of the tract. The Court pointed out that the general rule is that the term “right of way” is synonymous with “easement.” Therefore, the deed is unambiguous and there is no need to seek to determine intent.
The Cowans also argued that it was error to apply the 2003 version of AS 09.10.030 to their adverse possession claim because the Cowans were vested with title to the disputed land before the statute was changed, the legislative history indicates that the changes were not intended to be applied to vested adverse possession rights, and the Legislature did not indicate that the law changing AS 09,10.030 was retrospective.
The Court points out that AS 01.10.090 states that “[n]o statute is retrospective unless expressly declared therein.” The 2003 amendments to AS 09.10.030 specifically stated that the amended version “applie[d] to actions that have not been barred before [July 18, 2003] by AS 09.10.030 as it read before [July 18, 2003]. Its application here would be retrospective since it would prevent a claim for adverse possession that could have been ripe prior to the time of the statute. The Cowans claimed they had adversely possessed the disputed land for more than ten years before 1980. Since title automatically vests in the adverse possessor at the end of the statutory period, the Cowans would be deprived of a valid claim, if they proved their case.
Since the factual disputes regarding the elements of adverse possession had not been determined, the case was remanded for further factual findings, particularly on the hostility element. The trial court’s finding that the disputed land was validly dedicated to the Borough was vacated. If the Cowans are found to be owners at the time the plats were approved, their signatures would be required while the signatures of easement holders are not required.